This afternoon the U.S. Department of Education (ED) released draft regulations for discussion in the third and final negotiated rulemaking session on the Every Student Succeeds Act (ESSA). The revised draft attempts to address some of the concerns expressed by negotiators, advocates, and lawmakers regarding the earlier version and provide districts with more flexibility.

The new draft eliminates language requiring “basic educational programs,” as well as the references to State and local funds providing services required by law to students with disabilities and English language learners in conjunction with federal aid. Some had argued that these provisions would open States and districts up to lawsuits.

In addition, the updated draft allows LEAs to use budget systems that do not rely on per-pupil expenditures but instead use alternatives like weighted student formulas. Finally, some changes were made to the compliance requirements. A State that could not meet the test which requires that Title I schools receive as much or more per-pupil funding as non-Title I schools would not be considered in violation unless it failed to meet that requirement twice in a four-year period. Finally, a district would be able to rebut a finding that its methodology was not compliant, particularly where non-Title I schools serve a high proportion of English learners or students with disabilities.

Still, this new draft does not address one of the major concerns that stakeholders had with the earlier version – namely, the use of per-pupil expenditure tests. Negotiators must come to a consensus in order for the Committee to produce a rule.

Julia Martin is an attorney with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.